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THE GOLDEN RULE代寫

legislation
THE LAW MAKING POWER OF PARLIAMENT

§
§Doctrine of Parliamentary Sovereignty:

Subject to the Constitution, Parliament is supreme law-maker
§Its laws not subject to ‘higher’ laws, e.g., morality
§One parliament can’t restrict powers of next parliament
§No-one can override parliament’s laws (unless unconstitutional)
Table of legislatures in Australia
Parliaments
  Law making powers of Australian legislatures

Each state and territory legislature has, by virtue of the Constitution of that state or territory, a general legislative power “to make law for peace, order and good government” of their particular state/territory. 

The Commonwealth government has a less general legislative power than the state and territory governments. 

The Commonwealth Constitution gives the Commonwealth parliament power to make law in relation to specified matters only. 

Some of the Commonwealth’s legislative powers are exclusive to the Commonwealth parliament while others are shared with the states/territories.


Continued…
Commonwealth and State legislative powers
Law making powers of Australian legislatures

However, if federal legislation conflicts with state or territory legislation in a sphere where the power to pass legislation is shared, the federal legislation prevails over the state legislation, but only to the extent of the inconsistency.

This result is mandated by s.109 which provides:

  “When a law of a state is inconsistent with a law of the commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”
 
 
Local Government

Local governments are established under Acts passed by whichever parliament has jurisdiction over the region in which the local authority is to operate. Local authorities have specified power to make laws, called ‘by-laws’. By-laws will be invalid if they are inconsistent with state or federal law, or if they exceed the powers given to the local government under its enabling Act.

Local government by laws are but one specific example of a more general phenomenon called ‘delegated legislation’ (also referred to as secondary legislation or subordinate legislation or statutory rules). Another example of law making by means of delegated legislation is that provided by the Statutes and by-laws of this University.







Delegated legislation is ‘written law’ made by an executive authority under powers given to that authority by primary legislation and which is made in order to implement and administer the requirements of that primary legislation.

For example, within any Act, the Parliament may delegate to the Executive arm of government (the Governor or the Governor-General in Council, i.e. sitting with Ministers) or to the Head of a Department or to some other nominated person or authority, the power to make Rules, Regulations and By-Laws for purposes connected with the Act.

The Legislative Process
Drafting process
Bill introduced to parliament – usually the lower house
“Read” three times
Note second reading speech
Voted on
Moves to other house
Similar process
Royal assent
 Finding particular Acts or delegated legislation
Commonwealth legislation: on the Australian Attorney General's Department site, ComLaw: http://www.comlaw.gov.au

Legislation from Western Australia: http://www.slp.wa.gov.au/Index.html

Legislation from other jurisdictions can be accessed via the Australasian Legal Information Institute site (www.austlii.edu.au).


 How to interpret legislation

Two Sources of Guidance

STATUTORY RULES

COMMON LAW RULES
STATUTORY RULES
DEFINITIONS SECTIONS:

Statutes usually have definitions of frequently used words in the Act itself
e.g., The Criminal Code 1913 (WA)
“The term “night” or “night-time” means the interval between 9 p.m. and 6 a.m.”
Interpretation Act 1984 (WA)
“act” used with reference to an offence or civil wrong includes an omission…
STATUTORY RULES
LONG TITLE  IN AN ACT:

The long title at the beginning of the Act often helps to clarify what Parliament intended when passing the Act eg. The long title of the  Competition and Consumer Act 2010 (C’th) is:
“An Act relating to competition, fair trading and consumer protection, and for other purposes”

Competition and Consumer Act 2010 (C’th)
THE ‘PURPOSIVE’ APPROACH TO STATUTORY INTERPRETATION
INTERPRETATION ACT
1984 (WA)
State Acts (WA)
SECTION 18:
Purpose

SECTION 19:
Extrinsic material
(documents etc other than the Act itself)
ACTS INTERPRETATION ACT 1901 (CTH)
Commonwealth Acts (Cth)
SECTION 15AA:
Purpose
[same as s 18 Interpretation Act 1984 (WA)]
SECTION 15AB:
Extrinsic material
[same as s 19 Interpretation Act 1984 (WA)]

INTERPRETATION ACT 1984 (WA)


s.18: Purpose or object of written law, use of in interpretation
 
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.





s.19: Extrinsic material, use of in interpretation
 
(1) Subject to subsection (3), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material — 
  (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
  (b) to determine the meaning of the provision when — 
              (i) the provision is ambiguous or obscure; or
  (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
Extrinsic material
Could include:

Second reading speech
Explanatory Memorandum
Reports of Law Reform Commissions
Treaties
To Sum Up

Apart from the structure of the statute itself, the statutory context to which the courts may have regard includes relevant Explanatory Memoranda and the reports of Law Reform Bodies or other documents or events that created or identified the need for the particular statutory provision: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408;

The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the statutory language proves to be ambiguous, the days have long since passed when the courts would adopt a strict constructionist view of interpretation which required them to adopt the literal meaning of the language as that emerged only from within the four corners of the statute itself.


The courts nowadays adopt a ‘purposive approach’ which seeks to give effect to the true purpose of legislation. To that end the courts are permitted to look at much extraneous material that bears upon the background against which the legislation was enacted. This is sensible. Why would the courts want to cut themselves off from any available source of an authoritative statement of the intention which finally led to the legislation being enacted?

THE FOLLOWING GENERAL COMMON LAW RULES OF INTERPRETATION HAVE EFFECTIVELY BEEN REPLACED BY THE STATUTORY ‘PURPOSIVE APPROACH’
LITERAL  RULE
ACTUAL WORDS
give ordinary, everyday, usual meaning

Use dictionary meaning


THE GOLDEN RULE
 Words given their ordinary meaning unless that would result in an absurdity.

This rule allows words to be modified to achieve a workable (ie not ‘absurd’) result.

THE MISCHIEF RULE
Court determines PURPOSE of Act - adopts a meaning consistent with the purpose.

“PURPOSE”
What ‘MISCHIEF’ (PROBLEM) was the Act trying to remedy?

BUT MANY OTHER COMMON LAW ‘RULES’ CONTINUE TO BE APPLIED BY THE COURTS

Common law interpretive ‘presumptions’

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